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Wrongful birth, wrongful conception, and the Irish Constitution

Martinus Nijhoff Publishers, an imprint of Brill
Publication Date
  • Law
  • Irish Constitution
  • Irish Law
  • Law


Microsoft Word - eur_jour_health_law_12_1_2005.doc WRONGFUL BIRTH, WRONGFUL CONCEPTION, AND THE IRISH CONSTITUTION 1. Introduction This paper examines the question of whether, based on the current legal situation, a claim for compensation in wrongful birth and wrongful conception cases would be successful in the Republic of Ireland. It begins with an outline of what is commonly understood by the terms ‘wrongful birth’ and ‘wrongful conception’. Brief analysis will then be provided of the judiciary’s approach in the United Kingdom.1 Specifically, the focus of the work examines how the existence of a Constitution in the Republic of Ireland, which guarantees the right to life of the unborn child, could influence the potential issue of compensation in such cases. Evaluation of existing Irish case law on the issue of abortion and the right to life suggests that the Irish judiciary would find it difficult to reconcile payment of compensation for the upbringing of a child because of the positive duty incumbent upon the State to protect the right to life.2 2. Distinguishing ‘wrongful birth’ and ‘wrongful conception’ The terms ‘wrongful birth’ and ‘wrongful conception’ should not be taken as different tags for the same issue. There has been disparity and confusion regarding this matter which has inevitably led to confusion as to the proper use of terminology.3 In McFarlane, Lord Steyn defines ‘wrongful birth’ actions as those taken by parents for the damage they suffer due to this ‘unwanted’ birth.4 Lord Clyde in the same case adopts a different view as to the meaning of ‘wrongful conception’ and ‘wrongful birth’ stating that the claim in McFarlane is for wrongful conception, not wrongful birth where negligence has failed to terminate the child.5 Academic commentary further illustrates the various interpretations relating to the two terms under review. Donnelly provides a more precise qualification, explaining that: Wrongful birth arises where a child i

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